U.S. v. Dashney

• Decision Date: 27 June 1991
• Docket Number: Nos. 90-1136,90-1220,s. 90-1136
• Citation: 937 F.2d 532
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David A. DASHNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 532

937 F.2d 532

60 USLW 2059

UNITED STATES of America, Plaintiff-Appellee, v. David A. DASHNEY, Defendant-Appellant.

Nos. 90-1136, 90-1220.

United States Court of Appeals, Tenth Circuit.

June 27, 1991.

Jill M. Wichlens, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, with her on the brief), for defendant-appellant.

Robert D. Clark, Asst. U.S. Atty., Denver, Colo. (Michael J. Norton, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and BARRETT and SEYMOUR, ^* Circuit Judges.

HOLLOWAY, Chief Judge.

I

Defendant-appellant, David Allen Dashney, appeals from his convictions and sentence after a jury trial on two counts of structuring and attempting to structure cash transactions in excess of $10,000.00 for the purpose of avoiding bank filings of currency transaction reports (CTRs), in violation of 31 U.S.C. Sec. 5324(3), 31 U.S.C. Sec. 5322(a), and 18 U.S.C. Sec. 2. ¹

There was evidence tending to show that in December of 1989 Dashney won approximately $92,400, paid out in cash, playing blackjack at the Mirage Hotel in Las Vegas. VIII R. at 354-55; IV R. at 45-46. He was registered under the name David Allen, Allen being his middle name. VIII R. at 346-47; IV R. at 35, 77-78. After winning, Dashney went to Florida to talk to his broker at Dean Witter where he had an account. Dashney told his broker's secretary that he did not want to use a check to deposit his winnings because of the tax consequences. VI R. at 152, 162. Subsequently Dashney discussed with his broker the possibility of depositing cash up to a certain amount without any CTR being filed. Id. at 165. The broker had the impression that Dashney thought that he could legally do what he wanted to do. Id. at 178. Dashney's broker informed him, however, that the brokerage company could not accept cash deposits in any amount. Id. at 167-68.

Soon thereafter Dashney flew to Colorado Springs, Colorado, where he attempted to rent a car, using cash only. This unusual rental attempt was reported to the Sheriff, who sent two officers to investigate. Id. at 183-85. The officers asked if they could search Dashney and his bags and were given permission to do so. They counted out $100,000 in his bag. Id. at 185. Dashney told them that the money had been won in Las Vegas. Id. at 186. Dashney also said that he had not given the money to Dean Witter because he knew if he deposited over $9,999.99 in cash, the broker had to tell federal authorities. Id. at 187. Dashney was picked up at the airport by his friend Sandra Jarrett.

On December 14, 1989, Dashney obtained a Colorado driver's license, using Jarrett's address. IV R. at 96-97; VI R. at 235-36. On that same day, he and Jarrett went to ten banks in the Denver area where they attempted to purchase and successfully purchased eleven checks from eight of the banks, each check made out to David Dashney, with no check for over $10,000. IV R. at 96-100; IX R. at 7, 9. Dashney and Jarrett did not purchase checks from two banks contacted.

At FirstBank--Cherry Creek branch, Jarrett began a purchase of a cashier's check for $10,000, made out to Dashney. VI R. at 244. During this transaction the teller told them that if the amount was $10,000 or more, a "large-currency transaction report" would have to be filled out. Id. at 241-42. Dashney told the teller that he did not want the CTR filled out because he did not want to pay taxes on the money. Id. at 243. He also told her that no CTR needed to be filed if a cashier's check for $9,999 were purchased. Id. at 242. Dashney then had the bank void the first check for $10,000 and issue a cashier's check to him for $9,999.99. Id. at 244, 249.

At World Savings--Cherry Creek branch Dashney purchased a cashier's check for $9,999.99, paid for with $100 bills. Dashney said he wanted to purchase ten checks for $10,000. He had the instructions portion of a CTR form in his hand when he approached the teller. Id. at 252, 254, 257-58. Dashney indicated to the teller that there was no need to report the money because it had been won in Las Vegas. Id. at 257.

At Commercial Federal Savings and Loan--Cherry Creek branch, Dashney raised the issue of CTRs, asking if one was required for a transaction of $10,000 or more. Id. at 262. The financial counselor told Dashney that he would definitely file a CTR for $10,000 or over and that it was discretionary as to filing one for lesser transactions. Id. at 262. Dashney purchased a bank check for $9,999.99 from the financial counselor and also purchased a cashier's check for $9,999.99 from a teller supervisor. Id. at 261, 263. Dashney again mentioned that he had won the money in Las Vegas. Id. at 266.

At FirstBank--Green Mountain branch, Dashney purchased a cashier's check for $5,000 from an operations supervisor. Id. at 270. Dashney inquired about purchasing a check for $9,999.99 and was informed that the bank would file a CTR for any transaction over $5,000. Id. at 271. Jarrett then attempted to purchase a cashier's check for $5,000 with Dashney's money. Id. at 273. The supervisor and the bank president decided that the two checks would have to be considered as a single transaction requiring a CTR, but Dashney indicated that he would not provide information for a CTR. Id. The second check was voided. Id. at 272. Dashney told the supervisor that the money had been won in Las Vegas and that such winnings are exempt from CTR rules. Id. at 278.

At Century Bank--Cherry Creek branch, Dashney inquired about a certificate of deposit for over $100,000. Id. at 283. He indicated that he was not pleased with the offered rate and would shop around. Id. at 283-85. Dashney then asked about purchasing a cashier's check for $100,000 but changed his mind after he was told that a CTR would have to be filed. Id. at 285-86, 292. Dashney then asked a vice president if a CTR had to be filed for transactions under $10,000 and was told that one would be filed. V R. at 130. Dashney then showed the instructions portion of a CTR form to the vice president, specifically the paragraph stating that no form need be filled out for transactions under $10,000. Id. at 131. The vice president responded that if there was suspicion that multiple transactions might add up to more than $10,000, they had to fill out a CTR. Id. Dashney became irritated and left the bank without conducting any transaction. Id.

At First National Bank of Lakewood, Dashney asked about purchasing a cashier's check for $10,000 and asked if a CTR would have to be filled out. VI R. at 296, 299. He noted that he had won the money in a casino. After being told that a CTR would be filed for a $10,000 transaction, Dashney pointed out the clause on the CTR form stating that casinos are exempt from CTR requirements. He then purchased a check for $9,999.99. Id. at 296-301.

At Capitol Federal Savings--Green Mountain branch, Dashney said he wanted to purchase a $10,000 cashier's check. When he was told that a CTR would have to be filled out for the transaction, he changed his purchase to a $9,999.99 cashier's check. Dashney told the savings counselor that he had won the money in Las Vegas and he showed her a gold watch he had purchased with the money. Id. at 305-310.

At Green Mountain Bank, Dashney asked to purchase a $10,000 cashier's check. When he was told that a CTR would be filled out, he objected, stating that only transactions over $10,000 required CTRs. The head teller told Dashney that it was discretionary as to whether to fill out a CTR for any amount under $10,000. Id. at 312. Dashney then told the teller that he had already purchased over ten cashier's checks that day and he held up "in a fan-type motion backs of what looked like checks." Id. at 314. A few minutes later, Jarrett attempted to purchase a check for $9,999.99 at another teller's window but no check was obtained. Id.

At Cherry Creek National Bank, Dashney asked about purchasing a cashier's check for $30,000. He was told that a CTR would be filed for any transaction over $10,000, whereupon he decided to get a check for $10,000 instead. An unidentified woman accompanying Dashney then purchased a cashier's check for $9,999.99, payable to Dashney. VII R. at 324-25.

At World Savings and Loan--Lakewood Green Mountain branch, Dashney asked about a jumbo certificate, a certificate of deposit for $100,000 or more. VII R. at 337. He appeared unhappy with the offered rate, saying he could get better rates elsewhere. Dashney then purchased a $10,000 association check, similar to a cashier's check. Id. at 330-31. Jarrett purchased an association check for $5,000 payable to Dashney. Dashney initiated a discussion about CTRs and he said that one should not be filled out because the transaction was for only $10,000. Id. at 332, 333. During the conversation Dashney said that he had started off with $100,000 in cash and he was going from bank to bank purchasing cashier's checks, which he showed to the teller in a stack. Id. at 336. The checks purchased by Dashney and Ms. Jarrett on December 14 totaled $99,999.93.

Dashney testified on his own behalf. He stated that he had won the money in Las Vegas, but that he thought that these winnings were reported to the government by the casino. IX R. at 3, 7. Dashney testified that he left the hotel on December 9 with $100,000; he had won $113,000 and had bought an expensive watch there. Id. at 3. Dashney testified that he was concerned about "bureaucratic problems" which might arise from having the same money reported to the government again when he bought cashier's checks. Id. at 8. He claimed that he had no intention of hiding the money and that he was purchasing cashier's checks only because Dean Witter would not accept cash. Id. at 9. Dashney said that several of the prosecution witnesses made incorrect statements in court. Id. at 17, 30, 34, 37, 41. A number of the checks were identified by Dashney as having been...